New law provides protection for journalists’ sources from police snooping – but no prior notification

The draft Investigatory Powers Bill sets out in law new protections intended to stop police accessing journalists’ call records in order to identify their sources.

But there is concern from within the journalism industry that the new protections do not go far enough.

The new law will replace an interim addition to the Regulation of Investigatory Powers Act passed in March this year following Press Gazette's Save Our Sources campaign.

The draft bill states that police forces must get the approval of a “judicial commissioner” before accessing the communications data of a journalist in order to identify a source.

Under the current interim measures police forces must go to a judge for approval. The new measures would see this power given to a retired judge appointed by the Government to work for a new watchdog called the Investigatory Powers Commissioner.

In March this year the Interception of Communications Commissioner revealed that police forces had secretly viewed telecoms records to find the sources of 82 journalists over a three-year-period. His report led to the interim law-change in March, which provided judicial oversight of these telecoms requests for the first time.

However, police requests to view journalists’ call records are made directly to telecoms service providers with no notice given to the news organisation concerned. And that will continue to be the case if the draft legislation becomes law, meaning journalists will have not opportunity to argue the case in favour of protecting their sources.

The draft legislation states that “in making an application for data to identify a journalistic source, the applicant is not required to notify either the person to whom the applications relates i.e. the journalistic source, nor that person’s legal representative”.

The draft legislation will be seen by journalists as an improvement on the old Regulation of Investigatory Powers Act, which made no provision for the protection of sources.

The draft legislation states: “Police requests that are intended to identify journalists’ sources must be authorised by a judge

“Whilst everyone has a right to privacy, certain professions handle particularly sensitive or confidential information, which may attract additional protections.

“These professions include medical doctors, lawyers, journalists, Members of Parliament and the devolved legislatures, and Ministers of Religion.

“The Investigatory Powers Bill will put in statute a requirement for all applications to access the communications data for the purpose of identifying or confirming the identity of a journalist’s source to be authorised by a Judicial Commissioner.

“The draft Bill will also require that statutory Codes of Practice issued in respect of communications data must make provision for additional safeguards that apply to sensitive professions Commissioner approval for authorisations to identify or confirm journalistic sources.”

Executive director of the Society of Editors Bob Satchwell said: “This does not appear to be much of an improvement on the interim measures that were put in place after the RIPA scandal.

“The police need to understand that journalists are not criminals and that they need to think very carefully before they do anything to search their records.

"Accessing journalists’ call records should be a rare exception for police rather that the rule it seems to have become in recent years.

“There also needs to be a clear rule that media organisations get fair warning so that they can challenge any requests if required.”

Requests to view the content of communications, rather than the data about who called who and when, requires the approval of the Home Office and a judicial commissioner in all but exceptional circumstances where these is time pressure (such as imminent threat to life).

Asked about protection of journalistic sources by shadow home secretary Andy Burnham in Parliament today, Home Secretary Theresa May said: “We will put into this legislation what we put into PACE code earlier this year, which is that for access to communications data to identify a journalist’s source, it will require judicial authorisation.

"And in relation to the double-lock, the point of the double lock is that both parties have to authorise the warrant for the warrant to go ahead. There will be an… urgent process, so it will be possible for a secretary of state to sign an urgent warrant, for it to come immediately into effect, and then there will be a period of time within which the judge will have to review that and then make a decision as to whether it should continue or not.

"And we will obviously be looking to ensure that in that urgent process the time delay is as little as possible between those two parts of the process. But as I say, the purpose of a double-lock is that you’ve got in most circumstances you’ve got that double authorisation.”